This picture taken on December 5, 2022 shows activists holding a protest against the new criminal code outside the parliament building in Jakarta. Indonesia's parliament approved on December 6 legislation that would outlaw pre-marital sex while making other sweeping changes to the criminal code -- a move critics deemed as a setback to the country's freedoms. (Photo: Adek Berry / AFP)

Indonesia’s New Penal Code: A Setback for Indonesian Democracy

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The Widodo administration’s heavy-handed ramming through of the revised Criminal Code in late 2022 raises deep concerns about Indonesia’s commitment to democratic process and expression.

On 6 December 2022, Indonesia’s house of representatives (DPR) passed a revised penal code (KUHP) replacing the old code that was based mainly on former Dutch colonial law. Proponents of the revision cheered the passage as the KUHP’s “decolonising”. The hefty code consists of 624 articles and Indonesia’s law experts have deliberated on its possible revision since 1963. Its passage is a milestone in Indonesian legal history.

The KUHP should have been passed in 2019 along with two other controversial bills, the Revisions to the Anti-Corruption Commission (KPK) Law and the Job Creation Law (the “Omnibus Law”). However, the Widodo administration was compelled to withdraw the KUHP bill, due to strong opposition from civil society, especially from the #Reformasidikorupsi movements. 

The government carefully orchestrated the KUHP’s passage last year by not publicising the deliberations on its provisions. While Jakarta claims that it held outreach and consultation efforts with civil society, protests and demonstrations erupted days before the DPR plenary but lacked momentum to stymie the law’s passage. 

Except for a Prosperous Justice Party (PKS) representative who walked out during the plenary and objected to the proposed articles on insulting state authorities, the bill passed with full DPR support.

It is unsettling for a purported democracy that the code’s passage involved minimal participation of Indonesia’s elected representatives. Only 18 of them physically attended the plenary, while 116 out of 575 were present online. 118 representatives had asked for permission not to attend the session; the remaining 323 were unaccounted for. Even so, a quorum was declared.

From its inception, the KUHP has been problematic because of the lack of serious debate about the various controversial provisions. 

In the wake of the KUHP’s passage into law, foreign governments and the United Nations (UN) have joined Indonesian civil society in criticising certain clauses that threaten to undermine individual and minority rights. For instance, Washington and Canberra have warned that the KUHP’s proposed criminalisation of what they see as personal matters would jeopardise the country’s investment and tourism sectors. 

In general, these two governments are concerned about the so-called morality articles that criminalise adultery and out of wedlock cohabitation and sexual relations. It is unclear how these will be enforced, but the new law can presumably be applied to Indonesians and foreigners, including foreign citizens visiting or living in Indonesia. The Australian government has even issued a travel warning to its citizens to be careful. This is notwithstanding early assurances by Bali’s tourism officials that no hotel or tourism authority will check tourists’ marital statuses or intrude into visitors’ personal affairs.  

The Indonesian government has countered these concerns by pointing out that for Indonesians, only immediate family members (parents, spouses or children) can bring a charge of alleged adultery or other related “crimes”). However, given the phrasing of the law, there is a real risk that these clauses will be used to persecute sexual minorities and same-sex couples who cannot marry under Indonesian law (and who thus may engage in “extramarital” sexual relations). 

Human rights activists and the UN warn that elements of the Code potentially violate several international conventions that Indonesia has signed. According to Amnesty International in Indonesia, the KUHP contains at least 88 articles that conflict with existing international human rights principles.

From its inception, the KUHP has been problematic because of the lack of serious debate about the various controversial provisions.

Separately, the contempt provisions forbidding the insulting of Indonesia’s president, vice president, and other state institutions now carry a maximum penalty of three years’ jail. This particular provision revives an old one in the previous Penal Code that was struck down as unconstitutional in 2006. 

Another problematic provision concerns “treason” against the president, the Indonesian state, and the government. The definition of “treason” in this KUHP is so broad that it will make it easier for critics of the president to be silenced, using the pretext that it is an act of treachery. 

The original Dutch colonial law, called haatzai artikelen in Dutch and similar to lese majeste, protected Dutch colonial rulers and the dignity of Dutch royalty. To revive this type of law in 2022 suggests that Joko Widodo’s aim is to silence his critics. One might ask: what may be seemly for a king or queen 200 years ago is surely unseemly for a president of a democratic nation-state in the twenty-first century? 

Legally speaking, such provisions on contempt not only limit Indonesians’ individual freedom of expression but might be redundant. Indonesia already has a law on Information and Electronic Transactions (ITE) to regulate defamation in the media. Anyone who insults the head of state and other government officials can be charged using this law.

Other provisions potentially limit Indonesians’ civil liberties and human rights. They cover marches, rallies, and demonstrations: organisers are now required to notify the authorities beforehand of plans for such events. There are now limits on the spread of teachings that are contrary to Pancasila (the state ideology), especially Communism/Marxism. One controversial provision is on abortion, which is permitted in cases of rape but not if the pregnancy is beyond 14 weeks. This must be reconciled with at least two other pre-existing mandates: Law 36/2009 on health prohibits the abortion of foetuses over six weeks old while a fatwa of the Indonesia’s Council of Ulama (MUI) prohibits abortion altogether. 

Other controversial provisions are related to the spread of fake news that will likely limit press freedom, vandalism of public facilities (punishable by a five-year jail term, which some say is too draconian for acts of delinquency), and witchcraft (which is difficult to prove).

The Widodo administration has suggested that those who disagree with the new KUHP can file a lawsuit with the Constitutional Court. This is the main recourse that civil society organisations have if they hope to make any future amendments to the Code. Some are however sceptical that the Court will be independent when deliberating such lawsuits.  

Dismayingly, the political elites have mostly been silent. Only the treasurer of NasDem, which supports former Jakarta governor Anies Baswedan’s 2024 presidential bid, has promised to revoke the morality provisions if their candidate won. However, even under a supportive new president, a DPR majority is needed for such a legal change. Furthermore, amending the morality provisions would certainly upset the conservative Islamic parties, whose constituents are aligned with Anies. It certainly looks like Indonesia’s road to democracy has hit a major bump in the road.

2023/03

Made Supriatma is a Visiting Fellow in the Indonesia Studies Programme, ISEAS – Yusof Ishak Institute.